Dyer v. Childress, No. B187804.

• Court: California Court of Appeals
• Writing for the Court: Klein
• Citation: 147 Cal.App.4th 1273,55 Cal.Rptr.3d 544
• Parties: Troy DYER, Plaintiff and Respondent, v. Helen CHILDRESS et al., Defendants and Appellants.
• Decision Date: 26 February 2007
• Docket Number: No. B187804.

55 Cal.Rptr.3d 544 147 Cal.App.4th 1273 Troy DYER, Plaintiff and Respondent,
v.
Helen CHILDRESS et al., Defendants and Appellants. No. B187804. Court of Appeal, Second District, Division 3. February 26, 2007.

[55 Cal.Rptr.3d 545]

Leopold, Petrich & Smith, Louis P. Petrich and David Aronoff, Los Angeles, for Defendants and Appellants.

Kreindler & Kreindler, Gretchen M. Nelson, Stuart R. Fraenkel and Gabriel S. Barenfeld, Los Angeles, for Plaintiff and Respondent.

KLEIN, P.J.

Defendants and appellants Helen Childress, Universal City Studios, Wind Down Films, Danny DeVito, Michael Shamberg, Stacey Sher and Ben Stiller, appeal the denial of a special motion to strike plaintiff and respondent Troy Dyer's lawsuit for defamation and false light invasion of privacy as a strategic lawsuit against public participation (SLAPP) under Code of Civil Procedure section 425.16.¹ We conclude the conduct at the heart of Dyer's lawsuit, the assertedly false portrayal of Dyer's persona in the movie Reality Bites, is not conduct in furtherance of the defendants' exercise of their constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest. (§ 425.16, subd. (e)(4).) Consequently, we affirm the denial of defendants' special motion to strike.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Troy Dyer attended USC film school with defendant Helen Childress in the late 1980's. In 1990, Childress left school to work on a screenplay that became the movie Reality Bites, which was released in theaters in 1994. In the movie, Ethan Hawke portrays a rebellious slacker named Troy Dyer. The film addressed the issues facing Generation X in the 1990's. It was seen by more than 3 million people in theatres, it has been released on video-cassette and DVD, and has been exhibited on television.

In 2005, following the release of a Tenth Anniversary Edition DVD of the film, Dyer sued Childress and the other named defendants for defamation per se, defamation per quod and false light invasion of privacy based on the allegedly unflattering representation of Troy Dyer in the movie. The complaint notes the Tenth Anniversary Edition DVD includes a running commentary on the film by Childress and the film's director, Ben Stiller, in which Childress states the characters in the film are based on her friends at USC film school. Dyer claimed his work as a financial consultant in Wisconsin has been affected by the negative association with the movie character.

The defendants filed a special motion to strike Dyer's complaint under the anti-SLAPP statute. (§ 425.16.)² In support of the motion, Childress declared Dyer gave her express permission to use his name for

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the fictional Troy Dyer. Childress asserted the use of Dyer's name was an inside joke because the fictional Troy Dyer was dissimilar to the plaintiff who was "straight laced, mature, [said] conservative. . . ." Childress stated that, after the theatrical release of the film, it was apparent to Childress that Dyer had seen the film but he never mentioned he had been upset or damaged by the use of his name.

In opposition to the motion, Dyer denied he ever gave Childress permission to use his name or likeness. Dyer saw the film within a month of its release in 1994 but did not like the way the fictional Troy Dyer was portrayed. Dyer consulted an attorney when inquiries from prospective clients as to whether he was the character named Troy Dyer began to affect his business but was advised the statute of limitations had run. Knowing he had no legal recourse, Dyer did not complain. However, after the release of the Tenth Anniversary Edition DVD in 2004, Dyer again was besieged by inquires from potential clients as to whether he was the fictional Troy Dyer and this suit followed.

The trial court denied the defendants' special motion to strike. The defendants appeal the denial of the motion. (§ 425.16, subd. (j).)

CONTENTION

The defendants contend publication of the Tenth Anniversary Edition DVD of Reality Bites constitutes "conduct in furtherance of the exercise of the constitutional right of . . . free speech in connection with . . . an issue of public interest" because the film raised issues of genuine widespread interest about the challenges facing Generation X in the early 1990's and thus falls within section 425.16, subdivision (e)(4).

DISCUSSION

1. General principles related to a special motion to strike.

"A SLAPP suit — a strategic lawsuit against public participation — seeks to chill or punish a party's exercise of constitutional rights to free speech and to petition the government for redress of grievances. [Citation.] The Legislature enacted Code of Civil Procedure section 425.16 — known as the anti-SLAPP statute — to provide a procedural remedy to dispose of lawsuits that are brought to chill the valid exercise of constitutional rights. [Citation.]" (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055-1056, 39 Cal.Rptr.3d 516, 128 P.3d 713.) The purpose of the statute is to encourage participation in matters of public significance by preventing abuse of the judicial process. (§ 425.16, subd. (a).) The statute is to "be construed broadly." (§ 425.16, subd. (a).)

Section 425.16 describes four categories of conduct it addresses. The fourth category, in issue here, is "conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest." (§ 425.16, subd. (e)(4).)³

Analysis of a section 425.16 motion requires a two-step process. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88, 124 Cal. Rptr.2d 530, 52 P.3d 703.) In the first step, the defendant must make a threshold

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showing that the challenged cause of action arises from protected activity. (Rusheen v. Cohen, supra, 37 Cal.4th at p. 1056, 39 Cal.Rptr.3d 516, 128 P.3d 713; Zamos v. Stroud (2004) 32 Cal.4th 958, 965, 12 Cal.Rptr.3d 54, 87 P.3d 802; Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67, 124 Cal.Rptr.2d 507, 52 P.3d 685.) If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the claim. (Rusheen v. Cohen, supra, at p. 1056, 39 Cal.Rptr.3d 516, 128 P.3d 713; Zamos v. Stroud supra, at p. 965, 12 Cal.Rptr.3d 54, 87 P.3d 802; Equilon Enterprises v. Consumer Cause, Inc., supra, at p. 67, 124 Cal.Rptr.2d 507, 52 P.3d 685.)

"Review of an order granting or denying a motion to strike under section 425.16 is de novo. [Citation.] We consider 'the pleadings, and supporting and opposing affidavits . . . upon which the liability or defense is based.' (§ 425.16, subd. (b)(2).) However, we neither `weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant's evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.' [Citation.]" (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3, 46 Cal.Rptr.3d 638, 139 P.3d 30; Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 894,17 Cal.Rptr.3d 497.)

In determining whether the anti-SLAPP statute applies in a given situation, we analyze whether the defendant's act underlying the plaintiffs cause of action itself was an act in furtherance of the right of petition or free speech. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78, 124 Cal.Rptr.2d 519, 52 P.3d 695.) Accordingly, we focus on the specific nature of the challenged protected conduct, rather than generalities that might be abstracted from it. (Consumer Justice Center v. Trimedica International, Inc. (2003) 107 Cal. App.4th 595, 601, 132 Cal.Rptr.2d 191.) The "principal thrust or gravamen" of the claim determines whether section 425.16 applies. (Martinez v. Metabolife Internal, Inc. (2003) 113 Cal.App.4th 181, 188, 6 Cal.Rptr.3d 494.)

With these principles in mind, we turn to the issue presented herein.

2. The defendants' arguments.

In support of their contention Reality Bites is entitled to the protection under the anti-SLAPP statute, the defendants argue the film addresses broad topics of interest to the public, including the issues facing Generation X at the start of the 1990's. Thus, the film involved the right of free speech in connection with a public issue or an issue of public importance. Further, the special commentary on the film by Childress and Stiller that described the writing and creation of the film, distributed for the first time in the Tenth Anniversary Edition DVD, itself was of widespread public interest.

The defendants reason Reality Bites is entitled to the same protection under the anti-SLAPP statute that has been afforded other media defendants such as the radio call-in shows in Ingels v. Westwood One Broadcasting Services, Inc. (2005) 129 Cal. App.4th 1050, 28 Cal.Rptr.3d 933 and Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798, 807-808, 119 Cal.Rptr.2d 108, a documentary film on surfing in Dora v. Frontline Video, Inc. (1993) 15 Cal. App.4th 536, 544-546, 18 Cal.Rptr.2d 790, and an HBO documentary and Sports Illustrated article on molestation in youth sports in M.G. v. Time Warner, Inc. (2001) 89 Cal.App.4th 623, 107 Cal.Rptr.2d 504. The defendants further assert the public interest requirement necessary to support

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a special motion to strike can be met even when the plaintiff is not a public figure if, as here, the underlying issue is of widespread interest to the public. (Ibid; Terry v. Davis Community Church (2005) 131 Cal.App.4th 15514, 154&-1549, 33 Cal. Rptr.3d 145.)

The...